Walker, J.,
after stating the case: It has been settled by decisions of this Court that the judge presiding in the Superior Court has no power to set aside a verdict out of term, or at a subsequent term
(Stilley v. Planing Mills,
161 N. C., 577), although the same judge may have presided at both terms, without the consent of the parties; but with their consent he may do so.
Clothing
Co.
v. Bagley,
147 N. C., 37. In such a case, and generally also, consent waives the law. The elementary doctrine is well stated in Broom’s Legal Maxims (6 Am. Ed. of 1868), at top page 105, star page 137
et seq.: "Consensus tollit errorem
(2 Inst.,
123), that is, the acquiescence of a party who might take advantage of an error obviates its effect. In accordance with this rule, if the venue in an action is laid in the wrong place, and this is done
per assensum partium,
with the consent of both parties, and so entered of record, it shall stand; and where, by consent of both plaintiff and defendant, the venue was laid in London, it was held that no objection could afterwards be taken to the venue, notwithstanding it ought, under a particular act of Parliament, to have been laid in Surrey, for
per curiam, Consensus iollit errorem.
On the maxim under consideration depends also the important doctrine of waiver, that is, the passing by of a thing, a doctrine which is of very general application both in the science of pleading and in those practical proceedings which are to be observed in the progress of a cause from the first issuing of process to the ultimate signing of judgment and execution. If a party, after an irregularity has taken place, consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity. This is a doctrine long established and well known.
Consensus tollit errorem
is a maxim of the common law, and the dictate of common sense. It may appear in some measure superfluous to add that the consent which cures error in legal proceedings may be implied as well as expressed; for instance, where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move to enter a verdict for the amount found by the jury, it was held that both parties were bound by .the proposal, and that the plaintiff’s counsel was not, therefore, at liberty to move for a new trial on the ground of misdirection, for
qui tacet consentiré videtur,
the silence of counsel implied their assent to the course adopted by the judge, and
‘a.
man who does not speak when he ought, shall not be heard when he desires to speak.’ ” ■ It is often convenient for the judge, parties, and counsel that such arrangement should be made, and where it is done with the acquiescence, express or implied, of all interested, it should be allowed to stand and the proceeding considered, so far as its validity is concerned, as if it had been regularly conducted, for that no party should be allowed to take advantage of his own wrong is another cardinal maxim of the law, as well as a precept of good morals.. But we should always be careful to see that the proper consent has been fairly given. We do not doubt as to the true meaning of this transaction. The judge had clearly announced his decision, upon defendants’ motion, that the verdict was not only against the weight of evidence as to the cause of action, but that if it was right in that respect, the damages were excessive, and for these reasons the verdict would be set aside. It is impossible to misunderstand his language, which imported but one thing, that
the verdict should be set aside. But he desired to be perfectly fair to the parties, and therefore stated that the plaintiff
ought
to have something. Here is the only obscurity in the whole proceeding. Whether the learned judge thought that she was legally, or only morally, entitled to something does not clearly appear; but this is deemed an immaterial consideration. His mind was made up as to setting aside the verdict, and a formal order (or judgment, so called) to this effect was drawn up and signed by him and delivered to the clerk. We understand that, in law, this did set aside the verdict, and that the signing of a judgment for $1,700, the amount fixed by him, was merely for the purpose of substituting that judgment for the other, if the parties thereafter should so agree, and not having agreed, the $1,700 judgment became a nullity, and the judgment setting aside the verdict continued in force. This is the fair construction of the matter, for this carries out the manifest purpose of the judge and the parties.
But there is another view. If the two judgments were prepared and signed, so that the parties might thereafter choose between them, the consent that the proceeding might remain in that shape until their respective clients were heard from — for that is clearly what was intended by all — and the setting of the next Tuesday for calling the matter up, imparted validity to the decision of the court, even on Wednesday, and for this reason: Tuesday was not fixed as the only, or final, day on which the matter could be heard. Such a narrow construction of their agreement would defeat the obvious intent, which was that there should be sufficient time to hear from their clients and to receive proper authority to act in the premises, and the length of time, as being limited to the next Tuesday, was not of the essence. It was merely considered as a convenient time to take the matter up again, so that it would not be overlooked. What occurred on Tuesday and Wednesday makes this clear. The judge asked plaintiff’s counsel on Tuesday if he had heard from their client, which question he answered in the negative; but on the next day, Wednesday, plaintiff’s counsel called the matter to the attention of the court, and stated that he had heard from his client and that she declined to accept $1,700 and costs. If it had not been understood that, by tacit consent, the matter had been left over until she should be heard from, why mention the matter at all on Wednesday? It must be inferred that judge and counsel were waiting to hear from the respective parties, so that the arrangement, which had received their consent the week before, might be carried out with binding authority. The purpose was to settle the case, if possible, upon the basis of the judge’s suggestion, which was unfavorable to the defendant, in the view he had already taken of the. case, and the time of settlement was unessential, except in the respect that it was necessary that the required
time should be used in procuring their consent, so that the agreement would stand. Tuesday of the next week was merely named as a convenient day upon which to renew the matter, as the criminal court would then be sitting, and was not intended to be the final day. This construction of the agreement is necessary in order to preserve the good faith of all parties and to execute the apparent intent.
But there is , still another view which is controlling. Upon the basis that there was a misunderstanding among those who were parties to the agreement — and there appears to have been, by the argument before us —the law will never permit any injustice to be done under such circumstances.
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Walker, J.,
after stating the case: It has been settled by decisions of this Court that the judge presiding in the Superior Court has no power to set aside a verdict out of term, or at a subsequent term
(Stilley v. Planing Mills,
161 N. C., 577), although the same judge may have presided at both terms, without the consent of the parties; but with their consent he may do so.
Clothing
Co.
v. Bagley,
147 N. C., 37. In such a case, and generally also, consent waives the law. The elementary doctrine is well stated in Broom’s Legal Maxims (6 Am. Ed. of 1868), at top page 105, star page 137
et seq.: "Consensus tollit errorem
(2 Inst.,
123), that is, the acquiescence of a party who might take advantage of an error obviates its effect. In accordance with this rule, if the venue in an action is laid in the wrong place, and this is done
per assensum partium,
with the consent of both parties, and so entered of record, it shall stand; and where, by consent of both plaintiff and defendant, the venue was laid in London, it was held that no objection could afterwards be taken to the venue, notwithstanding it ought, under a particular act of Parliament, to have been laid in Surrey, for
per curiam, Consensus iollit errorem.
On the maxim under consideration depends also the important doctrine of waiver, that is, the passing by of a thing, a doctrine which is of very general application both in the science of pleading and in those practical proceedings which are to be observed in the progress of a cause from the first issuing of process to the ultimate signing of judgment and execution. If a party, after an irregularity has taken place, consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity. This is a doctrine long established and well known.
Consensus tollit errorem
is a maxim of the common law, and the dictate of common sense. It may appear in some measure superfluous to add that the consent which cures error in legal proceedings may be implied as well as expressed; for instance, where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move to enter a verdict for the amount found by the jury, it was held that both parties were bound by .the proposal, and that the plaintiff’s counsel was not, therefore, at liberty to move for a new trial on the ground of misdirection, for
qui tacet consentiré videtur,
the silence of counsel implied their assent to the course adopted by the judge, and
‘a.
man who does not speak when he ought, shall not be heard when he desires to speak.’ ” ■ It is often convenient for the judge, parties, and counsel that such arrangement should be made, and where it is done with the acquiescence, express or implied, of all interested, it should be allowed to stand and the proceeding considered, so far as its validity is concerned, as if it had been regularly conducted, for that no party should be allowed to take advantage of his own wrong is another cardinal maxim of the law, as well as a precept of good morals.. But we should always be careful to see that the proper consent has been fairly given. We do not doubt as to the true meaning of this transaction. The judge had clearly announced his decision, upon defendants’ motion, that the verdict was not only against the weight of evidence as to the cause of action, but that if it was right in that respect, the damages were excessive, and for these reasons the verdict would be set aside. It is impossible to misunderstand his language, which imported but one thing, that
the verdict should be set aside. But he desired to be perfectly fair to the parties, and therefore stated that the plaintiff
ought
to have something. Here is the only obscurity in the whole proceeding. Whether the learned judge thought that she was legally, or only morally, entitled to something does not clearly appear; but this is deemed an immaterial consideration. His mind was made up as to setting aside the verdict, and a formal order (or judgment, so called) to this effect was drawn up and signed by him and delivered to the clerk. We understand that, in law, this did set aside the verdict, and that the signing of a judgment for $1,700, the amount fixed by him, was merely for the purpose of substituting that judgment for the other, if the parties thereafter should so agree, and not having agreed, the $1,700 judgment became a nullity, and the judgment setting aside the verdict continued in force. This is the fair construction of the matter, for this carries out the manifest purpose of the judge and the parties.
But there is another view. If the two judgments were prepared and signed, so that the parties might thereafter choose between them, the consent that the proceeding might remain in that shape until their respective clients were heard from — for that is clearly what was intended by all — and the setting of the next Tuesday for calling the matter up, imparted validity to the decision of the court, even on Wednesday, and for this reason: Tuesday was not fixed as the only, or final, day on which the matter could be heard. Such a narrow construction of their agreement would defeat the obvious intent, which was that there should be sufficient time to hear from their clients and to receive proper authority to act in the premises, and the length of time, as being limited to the next Tuesday, was not of the essence. It was merely considered as a convenient time to take the matter up again, so that it would not be overlooked. What occurred on Tuesday and Wednesday makes this clear. The judge asked plaintiff’s counsel on Tuesday if he had heard from their client, which question he answered in the negative; but on the next day, Wednesday, plaintiff’s counsel called the matter to the attention of the court, and stated that he had heard from his client and that she declined to accept $1,700 and costs. If it had not been understood that, by tacit consent, the matter had been left over until she should be heard from, why mention the matter at all on Wednesday? It must be inferred that judge and counsel were waiting to hear from the respective parties, so that the arrangement, which had received their consent the week before, might be carried out with binding authority. The purpose was to settle the case, if possible, upon the basis of the judge’s suggestion, which was unfavorable to the defendant, in the view he had already taken of the. case, and the time of settlement was unessential, except in the respect that it was necessary that the required
time should be used in procuring their consent, so that the agreement would stand. Tuesday of the next week was merely named as a convenient day upon which to renew the matter, as the criminal court would then be sitting, and was not intended to be the final day. This construction of the agreement is necessary in order to preserve the good faith of all parties and to execute the apparent intent.
But there is , still another view which is controlling. Upon the basis that there was a misunderstanding among those who were parties to the agreement — and there appears to have been, by the argument before us —the law will never permit any injustice to be done under such circumstances. The only way to correct the error is to set aside the verdict and give the parties a new start. It would be grave injustice to proceed otherwise. The law strives to do what is right and just among litigants, as determined, it is true, by fixed rules and principles; but in many respects the days of legal quibbles and technicalities have passed, and a more enlightened age of civilization has taken a different view of the rights of parties, as they should be administered in the courts, and has, therefore, liberalized their practice and procedure. There is no reflection on judge, counsel, or parties in this case, and no fault to be found with any one. Defendant’s counsel are merely guarding with proper care and commendable loyalty the legal rights of their clients, as it is their duty to do, and it may be said of all those who took part in the case, that they have simply performed their duty in the premises.
We
are of the opinion that the ground .just taken by us is also a safe one upon which to rest our conclusion, viz., that by the combined effort’ of the judge, counsel, and parties to reach a definite agreement, there has resulted, unfortunately, a misunderstanding as to the time allowed for effecting a settlement, for the purpose of doing substantial 'justice, with, however, a firm decision of the judge, which was announced from the bench and rédueed to the form of a judgment, signed by him, that the verdict should be set aside. The intention is clear and should be effectuated, as it violates no settled principle of law to do so, and justice demands that it be done.
But apart from this, the legal effect of the transaction was to set aside the verdict, with leave to strike out the order if the proposition of the judge was afterwards accepted. This was the substance of it. The defendant had already agreed to do it, and the judgment for $1,700 was signed by the judge to await the acceptance or rejection of the plaintiff, as a convenient way of effecting a settlement, if both parties agreed, without the further intervention of the court.
Counsel were fully justified in maintaining their positions and defending their client’s legal rights, as they did by fair and legitimate argu
ment in this Court. The benevolent object of the judge was disappointed, leaving the alternative order to stand. The merits of the case and the question of removal are not before us.
Affirmed.